Archive for September, 2009
Creating Content for Websites - Don’t Forget Copyright Law!
Posted by Liisa Thomas in Digital Marketing on September 23rd, 2009
From time to time a case comes down that reminds us that not all employees are sufficiently trained about copyright law.
Do your employees know, when creating ads, that they cannot simply copy items from the Internet? Often, there is a misconceived notion that because an image is on the Internet, it must be free for the taking. This misunderstanding got two Ohio companies in trouble recently, in a decision issued by the Northern District of Ohio (Corbis Corp. v. Starr, N.D. Ohio, Case. No. 3:07CV3741 (summary judgment granted, Sept. 9, 2009)).
The problems started when a janitorial supply corporation owned by Nick Starr, Master Maintenance, hired a third party web developer, West Central Ohio Internet Link, Ltd., to redesign the Master website. As part of the site redesign, the parties agreed that there should be photographs of the janitorial supplies sold by Master. In updating the site, one of West Central’s employees uploaded several photographs, including four owned by Corbis Corporation, a visual solutions provider and owner of, among other things, a large collection of photographs which it makes available for viewing on its website. However, merely because the photographs were on the Corbis site did not mean they were free for the taking, and Corbis, when it discovered that its images were on the Master website, filed suit against Master and the site developer.
In finding at summary judgment that not only was West Central liable for copyright infringement, but Master was also liable for vicarious infringement, the court noted that Master had (1) received a direct financial benefit from the infringement and (2) had the right and ability to stop the infringement – its employees were responsible for approving all changes made by West Central to the site – but failed to do so.
This case serves as a reminder that all images that are included on a website, or in any type of advertisement, should be vetted and cleared to ensure that the owner has granted sufficient rights.
These materials have been prepared by Winston & Strawn for informational purposes only. These materials do not constitute legal advice and cannot be relied upon by any taxpayer for the purpose of avoiding penalties imposed under the Internal Revenue Code.
BREAKING NEWS: Maine AG will not enforce statute;court says parties on notice that private suits could be subject to constitutional challenge
Posted by Rob Fields in Marketing Law, marketing to children on September 10th, 2009
PMA is pleased to report that on September 9, 2009, the U.S. District Court in Maine entered a stipulated order of dismissal in the court challenge to Maine’s recently enacted law that prohibits the collection, receipt and use of personal information and health-related information from minors for marketing purposes without first obtaining verifiable parental consent. (We reported on the law and PMA’s involvement in these matters in an earlier blog post.)
The law was going to take effect on September 12, 2009, but a coalition of publishing and educational groups challenged the law on constitutional grounds, arguing that the law was overbroad and restricted First Amendment rights.
The court dismissed the complaint because the Maine Attorney General agreed not to enforce the law. The court held that the plaintiffs met their burden of establishing a likelihood of success on the merits of their First Amendment claims. Maine’s Attorney General acknowledged her concerns over the substantial overbreadth of the statute and agreed not to enforce it. She has also represented that the Maine Legislature will be reconsidering the statute when it reconvenes.
The court also stated that, as a result, third parties are on notice that a private cause of action under the marketing law could suffer from the same constitutional infirmities. This appears to be an effort by the court to discourage individuals and attorneys from filing a private cause of action to enforce the law.
We will keep you further posted on the law and urge any business desiring further clarification to seek counsel from their attorneys.
Google launches Internet Stat Center
Posted by Rob Fields in Consumer Insights, Digital Marketing, Marketing Accountability on September 7th, 2009
Very cool resource for marketers. From the site itself:
This Google resource brings together the latest industry facts and insights. These have been collected from a number of third party sources covering a range of topics from macroscopic economic and media trends to how consumer behaviour and technology are changing over time.
Check out the Google Internet Stat Center here.
Hat tip to Dave Knox for the heads-up.
Maine Attorney General Says Statute is not Enforceable
Posted by ekabak in Marketing Law, marketing to children on September 1st, 2009
Last week a complaint was filed in Federal Court in Maine (1)seeking a declaratory judgment that the recently passed Maine statute(10 MRSA SEC 9551 et seq,)— which prevents the collection of personal information for marketing purposes from a minor without parental consent and further restricts the use of such information for the purpose of marketing a product or service to a minor —is unconstitutional and (2) seeking an injunction against the enforcement of said statute.
In response thereto, on Friday Aug. 28, the Attorney General of Maine, Janet Mills, commented as follows:
“After speaking with the sponsor and other legislators involved in it, I think they understand that the law is not presently enforceable,” Mills told Capitol News Service. “And so the position we’ll take in the court, I believe, is that we won’t be acting to enforce the law as currently drafted.”
Mills say she has spoken with the measure’s sponsor, Sen. Elizabeth Schneider, a Democrat from Orono, and suggested they craft changes to the law that will achieve Schneider’s original goal of preventing minors from sharing sensitive health information online without infringing on constitutional rights.
However,notwithstanding the above, the AG may oppose the motion for a preliminary injunction by plaintiffs, because she may contend that there is no case or controversy and the case is moot in view of the nonenforcement. Since however, the statute also allows for a private right of action, it is possible that pending a rewrite of the statute, which goes into effect Sept. 12, clients may be in limbo vis a vis such private enforcement even if the AG does not enforce the statute. Accordingly, in such event,businesses are advised to consult with their attorneys as to the course of action they should undertake in the interim.
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